Divisible Statutes and the Means/Elements Test Under Mathias

In United States v. Henderson, 841 F.3d 623 (3d Cir. 2016), the Third Circuit ruled that Pennsylvania’s Controlled Substances Act was a divisible statue, and thus the district court was correct in applying the modified categorical approach to determine if a conviction under that statue was a “serious drug offense” under the Armed Career Criminal Act (“ACCA”).  The statute was divisible because the controlled substance schedules set forth different elements of the offense, not different means of committing the same offense.

In reaching its decision, the Third Circuit applied the means/elements test established by the Supreme Court in Mathias v. United States, 136 S.Ct. 2243 (2016).  Mathias set forth three methods of determining if a factor is a distinct element of the offense, or simply a separate means of committing the offense.  Courts should consider (1) whether a state court has decided the matter; (2) the language of the statute; and (3) the record itself.  For the statute in dispute in this case, a state court had already found that the type of drug involved in a case was a distinct element of the offense, not a means of committing the offense.  Second, the language of the statute did not simply set forth a “list of illustrative examples” of drugs that lead to a violation of the statute, but rather the statute contains “a disjunctive and exhaustive list” for drug types that are “alternative elements[,] not separate means of commission” of the offense.  Finally, the record in the underlying case, particularly the charging documents, showed the type of drug was an element of the offense, as it was the involvement of heroin that made this a serious drug offense. 

The appellate court noted that in performing a means/element review under the third method – examination of the record – courts are not limited to “actual conviction documents,” but rather courts may look to charging instruments, plea forms, sentencing orders, conviction documents and “other reliable judicial records.”

Finally, the Third Circuit ruled that the defendant’s conviction under the Pennsylvania law, involving heroin, qualified as a predicate offense under ACCA.